Abstract:
In this Article, I argue that many of the shortcomings of health care in the United States can be linked to the inherent limitations of the dominant paradigms of health care distribution. These approaches seek to provide a threshold level of services to everyone (basic minimums) or to ration services among covered patients. Over seventy years, both approaches have consistently failed to cover a sufficient number of individuals, to provide adequate basic health care, and to control costs. Further, basic minimum and rationing approaches, which restrict access to health care services to meet budget constraints, are particularly ill-suited to address patient demand for innovative medical services or to account for the benefits of modern, predictive technologies. The limitations of these dominant distribution schemes become clear when examining their theoretical foundations. Contractarian approaches, from which basic minimum schemes are derived, cannot address resource drain and patient demand for a broad range of basic health care services, including some forms of high technology. Rationing, a consequentialist approach, has the potential to accommodate a broad range of basic health care services, but it employs restrictive eligibility criteria. Rationing schemes using Quality Adjusted Life Year measurements discriminate against those of advanced age and with poor health status and rely on a narrow scale of well-being that makes trade-offs between health care and other goods difficult. In place of paradigms derived from contractarian and cost-utility frameworks, I propose a new legal paradigm-Basic Capability Equality of Health Care (BCEHC)-which both considers patient demand for a broad range of basic health care services and operates within budget limitations. Under BCEHC, individuals would have access to all clinically effective services-traditional and high technology-that support basic health care. Operating under insurance budget limitations and with physician guidance, individuals would make trade-offs and choose from among these goods to maximize their health.